Frontispiece of Italian judgment No. 24 of 20 December 1961 about the lack of Italian sovereignty over Trieste. This article features the translation and analysis of an abstract.
Trieste is independent from Italy. The Italian Council of State has already admitted it.
Trieste: 57 citizens are seeking to annul the latest [2013] Regional election. Region Friuli Venezia Giulia is appearing before Court to discuss their appeal before the Regional Administrative Court (Tribunale Amministrativo Regionale – TAR).
Indeed, the elections were summoned in breach of the Free Territory of Trieste‘s legal status, simulating Italian sovereignty over it despite Italy’s own recognition of Trieste’s independence since 1947. Still, the Region requested the appeal’s rejection, calling it unacceptable, manifestly inadmissible, groundless.
According to the Region’s lawyers, Ettore Volpe and Beatrice Corno, the 1975 Osimo Treaty (a political bilateral agreement between Italy and now former Yugoslavia) consolidated the Free Territory’s partition between its neighbor States, abolishing the 1954 Memorandum of Understanding of London.
Only, they do also claim it was the 1954 MoU to “restore” Italian sovereignty over Zone A of the F.T.T. – except wait! Nobody established the Free Territory as an independent State to begin with.
The Region’s legal service supports this “reckless” theory with no less than a disastrous administrative judgment (Regional Administrative Court for Friuli Venezia Giulia, No. 400/2013).
With that decision, an Italian adminsitrative Court ruled – against the Region’s lawyers, even – that sure, the Free Territory became independent, only to be annexed by its neighbors under the “rebus sic stantibus” (things thus standing) principle. To them, this legitimizes Trieste’s 1963 incorporation within autonomous Region Friuli Venezia Giulia.
Obviously, this is only political claims, and they have nothing to do with the law.
First of all, art. 7 of the bilateral Italian-Yugoslav agreement confirms the Memorandum of Understanding’s legal value among its signatories (which were Government, not States, namely, the Italian Government, the Yugoslav Government, and the Governments of the United States and of the United Kingdom).
On the date of the entry into force of this Treaty, the Memorandum of Understanding signed at London on 5 October 1954 and its annexes shall cease to have effect in relations between the Italian Republic and the Socialist Federal Republic of Yugoslavia. Each Party shall so notify the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America and the United Nations Security Council within 30 days from the entry into force of this Treaty.
This is Italian law, the Region’s lawyers should know better.
However, in order to ultimately disprove the two lawyer’s political claims, it is worth mentioning that even Italian judgments on the matter say otherwise. Although Italy does not follow the common law system, they should have at least studied the subject.
Speaking of the Memorandum, two years before the establishment of Autonomous Region Friuli Venezia Giulia was established “within the unity of the Italian Republic, one and indivisible” (but still “in accordance with Constitutional principle” which exist since 1948 and, according to art. 10 of the Italian Constitution, subject the Italian legal system to international obligations, therefore also to the 1947 Treaty of Peace) the Italian Council of State ruled, in judgment No. 24 of 20 December 1961, that Italy has no sovereignty over then-Zone A (the present-day Free Territory). Why? Because of the 1954 MoU. Indeed, this established a temporary civil administration.
Follows an abstract:
“… As already observed, the Memorandum of Understanding come to be in the aforementioned historical-legal framework of the Territory. Considering the impossibility to establish the Free Territory of Trieste [SIC!], the Memorandum, stipulated between the countries principally concerned, intended to «demilitarize» the two zones, entrusting with the responsibility of their civil administration the Governments of Italy and of Yugoslavia.
The letter of paragraph 2 of the Memorandum is that «The Italian and Yugoslav Governments will forthwith extend their civil administration over the area for which they will have responsibility».
Due to this, it is appropriate considering that the Italian Government in zone A, and the Government of Yugoslavia in zone B, were entrusted with this civil administration in the wait for an ultimate assessment of the Territory.
If, as claims the Company acting as appellant, the Memorandum would have had the purpose of re-establishing the full, ordinary, and final exercise of Italian sovereignty over zone A, and, consequently, to recognize the ultimate and perfect sovereignty rights over zone B to Yugoslavia, it would have amended the Treaty of Peace without being a technical instrument appropriate for that purpose, if for no other reason but the non-participation of the other Signatory States of that Treaty.
The truth is, although historically and politically the Memorandum established a new state of things, under a legal perspective, its source is article 1 of Annex VII of the Treaty, which establishes the rights of Allied Military Commands in their respective administration zones [omissis].
Only in consideration of this fact, thus of the limit the Memorandum places to the ultimate and perfect settlement of the part of the Territory of Trieste namely referred as zone A in the unity of Italian Administration the Decree of the President of the Italian Republic of 27 October 1954 can be understood and justified.
Because this is the decree that establishes a new Government official, namely a Commissioner General , who is competent both to extend Italian civil administration over zone A as they are competent to preserve the distinction of that same zone, the dissolution of which would only be possible amending the Treaty of Peace.
Obviously, the disputed decree could not assign to the Commissar but the powers entrusted to the Italian Government with the Memorandum – which envisions the substitution of our [the Italian] Government to the Allied Military Government as administering subject – and those powers that were already exercised by the same Allied Military Government under the Treaty that, as mentioned, was never amended, although never enforced [SIC!].
A different solution, one allowing the complete and perfect annexation of zone A thin Italian administrative unity, a solution that is the base of the appeal of the Company acting as appellant when questioning the Decree of the President of the Italian Republic of 27 October 1954 would not be enforcing the Memorandum of Understanding [omissis].
The truth is, the decree in question has never changed existing legal competences – being an irremediably unsuitable instrument for that purpose – rather, in compliance with the Memorandum of Understanding, it only transferred to the General-Commissioner of the Government for the Territory of Trieste the powers that were previously exercised by the Allied Military Government under the Treaty of Peace that Italy has correctly ratified.»
But the case in point is, the Free Territory of Trieste is established, and Italy recognizes it.
The 1961 judgment is wrong in the part claiming that the 1954 Memorandum of Understanding says that the Free Territory of Trieste was never established, starting from its title: Memorandum of Understanding regarding the Free Territory of Trieste.
Article 21:
1. There is hereby constituted the Free Territory of Trieste, consisting of the area lying between the Adriatic Sea and the boundaries defined in Articles 4 and 22 of the present Treaty. The Free Territory of Trieste is recognized by the Allied and Associated Powers and by Italy, which agree that its integrity and independence shall be assured by the Security Council of the United Nations.
2. Italian sovereignty over the area constituting the Free Territory of Trieste, as above defined, shall be terminated upon the coming into force of the present Treaty.
It’s crystal clear, obvious, and natural.
Except for the lawyers of Autonomous Region Friuli Venezia Giulia, who must have also forgotten to read article 70 of Italian Constitutional Law No.1 of 31 January 1963, which transfers the exercise of the temporary civil administration of the present-day Free Territory of Trieste from the Commissioner General to a Commissioner in the Region and Prefect, as well as to the Region itself, which therefore are illegally simulating Italian sovereignty denying Trieste’s independence.
Translated from blog “Ambiente e Legalità” – “Environment and Legality” by Roberto Giurastante